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TMI Blog2023 (7) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... The Appellant takes cenvat credit of the Service Tax paid for such Invoices. The Appellant was earlier known as Tata Business Support Services (TBSS for short). DGCEI, Chennai Zone Unit conducted enquiries and investigations on the activities of the Appellant and also in respect of various other Insurance companies for such transactions between the automobile dealers and the Appellant/insurance companies. The investigating officers Recorded the Statements of the officials of TBSS as well as from some officials of the automobile dealers. These Statements are relied upon by the Department to issue the Show Cause Notice. The Show Cause Notice alleged that the input invoices raised by the automobile dealers do not contain the details of the services rendered by them to the Appellant. As a matter of fact, it was alleged that the service itself was not provided by the dealers to TBSS and only Invoices were raised. Thus this was more of a paper transaction without any service being rendered. Therefore, the Show Cause Notice was issued on the ground that the cenvat credit taken by them is not legal and proper. Demand was issued for Rs. 44,33,35,282/-. The Appellant requested for opportuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t's portal of TBSS who generate the policies. He also has accepted that the Appellant have utilised the manpower, internet connection, computer etc., for providing the service for issuing the policies through the portal of TBSS. He also confirmed that there are many computer systems out of which a few systems are being used for generating the Insurance policy. Similarly they have several staff/officials and some of them are working for this purpose. Similarly, another official Shri R. Manoharan official of another Company has admitted that manpower, internet connection, computers are being utilised for issuing the Insurance policy through TBSS portal. He also confirmed that they have incurred expenses on such facilities. The Learned Counsel submits that the cross examination proves that whatever statement was recorded by the investigating officers was not correct and cannot be relied upon to press the Service Tax demand when the report of the cross-examination directly goes against the initial statements given by them. Hence, he submits that the Recorded Statements of these officials have no evidentiary value. He also points out to the Recorded Statement of the official of the TBSS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d when there is no doubt that the Service Tax in question has been paid, the cenvat credit taken by the recipient cannot be denied. He further submits that in all these cases proceedings were initiated by DGCEI Chennai who have also initiated the present proceedings and all the cases are on identical issue only. Therefore, the present Appeal is squarely covered by the decisions of the various coordinate Benches of the Tribunal. 5. In view of the foregoing, he submits that the present Appeal is required to be allowed. 6. The Learned AR submits that the DGCEI investigating officials have found that no service was rendered by the car dealers. They have also obtained statements from the officials of the car dealers who have confirmed that such services were not rendered by their firms. He reiterates the findings of the Adjudicating Authority to justify the confirmed demand. 7. Heard both sides and perused the documents. 8. From the documentary evidence placed before us, there is no dispute that the Appellant, the car dealer and the insurance company have entered into Tripartite Agreement at the very first stage. These Agreements have been entered into much before the investigation/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any count. 9. Coming to the case law cited by the Appellant in the case of M/s. Modular Auto Ltd. v. CCE, Chennai-North Commissionerate [2018-VIL-541- MAD-ST], the Hon'ble High Court has held as under: 16. In the instant cases, it is not in dispute that whatever the portion of Service Tax component which was collected from the assessees by BIL was only the amount on which the CENVAT credit has been claimed by the assessees. Therefore, unless and until the assessment made on BIL was revised, which obviously could have been done, at this juncture, on account of the expiry of the period of limitation, the interpretation given by the Commissioner (Appeals) as well as the Tribunal with regard to the nature of invoice raised on the assesses is unsustainable. Furthermore, we find that the reason assigned by the Tribunal in paragraph 6.2 stating that the activity performed by the BIL for monitoring of production activities of the assesses cannot by any stretch of imagination be considered as an input service or in relation to the manufacture of final products of the assesses, is a statement, which is unsubstantiated by any record. At best, it can be taken as a personal opinion of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it is an undisputed facts that the automotive dealers had paid service tax on the nature of services described in the invoices issued to the appellant; that payment of service tax by Service Tax Appeal No. 89570 of 2018 3 such dealers have been accepted by the service tax authorities having jurisdiction over their business premises. Since, the service tax paid by such dealers was availed as Cenvat credit by the appellant, availment of such credit is in conformity with the Cenvat statute. We find that in an identical case, Cenvat credit was denied by the Department, holding that the invoices issued by the automotive dealers are false/fraudulent/invalid, since no service of the description contained therein was rendered by the auto dealer. The dispute was resolved by the co-ordinate Bench of the Tribunal in the case of M/s. Cholamandalam Ms General Insurance Co. Ltd. (supra), holding that since the service tax was paid by the auto dealer, under the taxable head of "Business Auxiliary Service" and the assessment of auto dealer has not been re-opened or questioned, credit availed cannot be denied to the insurance company. This is also the ratio of the judgment of the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of service tax was availed by them. 9.3 It is observed that by placing reliance on the judgement of Hon'ble Madras High Court (supra), this Tribunal in the cases relied upon by the learned Counsel for the appellants has held that unless and until the assessment made at the dealer's end is revised or altered, the Cenvat credit availed on the basis of invoices by the recipient's unit cannot denied/whittled down. (Emphasis Supplied] 14. From the above decisions, it is seen that on identical issue various coordinate Benches of this Tribunals have held that the assesses therein are eligible to take the cenvat credit. 15. The case law of Newlight Hotels & Resorts Ltd., Vs Commissioner of C.Ex & ST, Vadodara [2016(44) STR 258 (Tri-Ahmd), cited by the AR is on the count that though the Tribunal has allowed the Appeal, the Department has filed an Appeal against this Tribunal's Order before the Supreme Court. However, there is no documentary evidence to the effect the Tribunal's Order has been stayed or overturned by the Supreme Court. Therefore, as the Tribunal's Order is in favour of the Appellant, this does not help the case of the Department in any way. 16. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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